Nomination Watch

Supreme Court agrees to hear abortion case

The Supreme Court today agreed to review the constitutionality of a broad federal abortion ban.   As we have reported,  the Bush Administration asked the Court to grant review of an Eighth Circuit decision striking down this law, the federal Partial-Birth Abortion Ban Act, which was passed by Congress in 2003 without an exception to protect women’s health.  The Court has now decided to hear this case in the next Term, which begins in October of this year.

The decision to take this case for review could be a sign that at least some of the Court, with its new members Chief Justice Roberts and Justice Alito, is ready to revisit its abortion precedents and in particular one of the core principles of Roe v. Wade – that the government may not place a woman’s health at risk when erecting barriers to abortion.  (It takes four votes to decide to hear a case). After all, there is no circuit split on whether this federal ban is valid -- all three federal circuit courts that have considered the ban have ruled it unconstitutional because it lacks a health exception -- and it was only six years ago that the Court decided in Stenberg v. Carhart that a state law similar to the federal law was unconstitutional because it lacked protection for a woman’s health.   But the swing vote in the 5-4 Stenberg decision was Sandra Day O’Connor, who has now been replaced by Justice Alito. 

We will know all too soon whether the new composition of the Court is going to mean significant changes in the area of abortion rights.

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No news – not necessarily good news

The Supreme Court today did not make a decision about whether to review the constitutionality of a broad abortion ban.  As we mentioned last week, the Bush Administration has asked the Court to review an Eighth Circuit decision striking down the federal Partial-Birth Abortion Ban Act, passed by Congress in 2003 without an exception to protect women’s health.  The petition for review has been before the court for months, with no decision made.  This week, the Administration filed an additional pleading urging the Supreme Court to hear the case and many observers expected a decision today.  The next day the Court may announce an order in this case is February 21.  We’ll be watching and waiting…

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Abortion litigation working its way to the Supreme Court

The constitutionality of a broad abortion ban may be headed for Supreme Court review .  Last July, the Eighth Circuit struck down a federal ban on certain abortions.  The Act was passed by Congress in 2003 and does not include an exception allowing the procedure when it is necessary to protect a woman’s health.  The Bush Administration has asked the Supreme Court to review the Eighth Circuit’s decision.  In January, the Supreme Court postponed a decision whether to hear the case, and the next opportunity for the Court to decide is when it meets on February 17.    

Last week, on the same day, the Courts of Appeals for the Second Circuit and the Ninth Circuit both issued decisions upholding lower court rulings (by district courts in New York and California, respectively) that the same federal abortion ban is unconstitutional. The Ninth Circuit unanimously declared the ban unconstitutional and struck it down in its entirety, for three separate reasons: it lacks a health exception, it is an undue burden on women’s right to  choose because it would effectively ban abortion as early as the 12th week of pregnancy, and it is so vague it deprives doctors of notice of what is prohibited.  The Second Circuit focused only on the lack of an exception, which it held unconstitutional, but it did not strike down the statute in its entirety.  Instead, it relied on the Supreme Court’s recent Ayotte decision, and ordered the parties to file additional briefs on whether there is an appropriate remedy that would bar application of the statute in some circumstances without striking it down completely.  As we reported, the Supreme Court in Ayotte acknowledged that barriers to abortion must protect a woman’s health, but ruled that a law that is unconstitutional in circumstances where a woman's health would be endangered may be struck down only as to those circumstances rather than in its entirety, if that is consistent with the legislature's intent. 

With the Second and Ninth Circuit Court decisions, that means that all three of the three challenges to the federal law have been successful – unless the Supreme Court, with its new members John Roberts and Samuel Alito, grants review of one or more of these cases and decides otherwise.  Stay tuned.

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A watershed moment for women

This morning the Senate voted to confirm Samuel Alito to the Supreme Court by a vote of 58-42.   The vote was almost entirely along party lines, with only four Democrats voting in favor and one Republican (Chafee of Rhode Island) voting against.  NWLC Co-President Marcia Greenberger had this comment:

“Today, Samuel Alito was confirmed to the Supreme Court despite more Senate opposition than anyone except Clarence Thomas in the last century.  The strong ‘no’ vote reflects a deep and widely-held concern – in the Senate and across the country – that placing Judge Alito on the Supreme Court will put core American values and principles at risk.   This nomination was both dangerous and needlessly divisive.

“This is a watershed moment for women.  With the retirement of Sandra Day O’Connor, and the confirmation of Judge Alito, core legal rights for women are in serious jeopardy.  So much that we hold dear is now up for grabs – the right to choose, strong protections against sex discrimination, the power of Congress to protect the public in areas like family leave, and more. 

“Judicial philosophy does matter.  It matters whether a nominee will protect women’s rights, civil rights and Americans’ most fundamental rights and freedoms. In exercising their advice and consent, Senators have a responsibility to preserve a Court that will protect these core values.  We applaud the Senators who stood up for that principle and deeply regret that their view did not carry the day.”

To those readers of our blog who made your own voices heard in this important debate, we at nominationwatch.org extend our thanks – and hope you will keep up the fight for a fair and independent judiciary and strong legal rights for women.  We know we will!

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Women senators joining in strong opposition to Alito nomination

This week, the full Senate has begun debate on the Alito nomination and we are pleased to see that the number of No votes is growing as senators evaluate the record of Judge Alito and determine that he should not become Justice Alito. Women senators have made powerful statements announcing their opposition. Senators Hillary Clinton , Barbara Boxer, Debbie Stabenow, Patty Murray, Barbara Mikulski, Dianne Feinstein, and Blanche Lincoln have all declared that they will be voting No on Alito.  Here are highlights from some of their statements:

Senator Mikulski: “Based on his own statements and his testimony at the hearings, I am left with very serious doubts about whether he will safeguard civil rights, the right to privacy and equal protection of the law for all Americans….He seems to be willing to take strong and clear positions in his court opinions, job applications and speeches, but unwilling to be clear about those very same positions when asked about them at his hearing. We are left to wonder if he will protect fundamental rights, like the right of privacy, the right to equal opportunities and the right to be free from unnecessary government intrusion….A Justice of the Supreme Court must be able to see through the abstractions and understand the role of the law in the lives of all Americans, not just the powerful and influential.”

Senator Feinstein:  “If one is pro-choice in this day and age, with the balance of the Court in question, one can’t vote for Judge Alito. It is that simple. I’m very concerned about the impact he would have on women’s rights, including a woman’s right to make certain reproductive choices, as limited by state regulations in many cases….And I came to the conclusion that the fundamental right to liberty is at issue with this nominee. It has nothing to do with his qualifications and his credentials. But it does have something to do with how far we are willing to see this Court move to the right and out of the mainstream of legal thinking in this great country. And I, for one, really believe that there comes a time when you just have to stand up, particularly when you know that the majority of people think as you do….[I]t is a vote that is made with the belief that legal thinking and personal views, especially at times of crisis, at times of conflict, and at times of controversy do mean something. And those of us that don’t agree with the view have to stand up and vote no. And so I am one of those.”

Senator Clinton: “I have concluded I cannot give my consent to his nomination to the Supreme Court. The way I read American history is that the key to American progress has been the ever-expanding circle of freedom and opportunity….We all know the famous cases cited as representing this forward march of progress: Brown v. Board of Education, which struck down the notion of separate but equal; Baker v. Carr, which invalidated discriminatory State voting apportionment schemes and paved the way for the concept of one man, one vote; Griswold v. Connecticut, which recognized a right to privacy in the Constitution; Roe v. Wade, which established that women have a right to choose. We need judges who will maintain that forward progress. Despite his distinguished academic credentials, Judge Alito has not shown himself to be that kind of judge.…Time and again, when given the choice, he has voted to narrow the circle, to restrict the rights Americans hold dear.”

Senator Boxer: “[A]fter reviewing the hearing record and the record of his statements, writings and rulings over the past 24 years, I am convinced that Judge Alito is the wrong person for this job….Will Justice Alito vote to protect the right to privacy, especially a woman’s reproductive freedom? Judge Alito’s record says NO….To my mind, Judge Alito’s ominous statements and narrow minded reasoning clearly signal a hostility to women’s rights, and portend a move back toward the dark days when abortion was illegal in many states, and many women died as a result. In the 21st century, it is astounding that a Supreme Court nominee would not view Roe v. Wade as settled law when its fundamental principle – a woman’s right to choose - has been reaffirmed many times since it was decided.”

Senator Murray:  “The next justice will have the power to change the Court, change the country, and change our rights for generations. Judge Alito has a very troubling record. In his hearing and in our private meeting, he did not show he will be an independent judge who will uphold the rights and liberties of all Americans. With our rights and freedoms on the line, I will not take a chance on Judge Alito because I have serious questions about his independence and commitment to protecting our rights and liberties.”

Senator Lincoln: “I can not in good conscience support his nomination to the Supreme Court to replace Sandra Day O’Connor….Of equal concern is Judge Alito’s record on the issue of discrimination in the workplace. In Chittister v. Department of Community and Economic Development, Judge Alito’s statement that the Family Medical Leave Act was a "disproportionate solution" to the problem of workplace discrimination is deeply troubling….I fear that Judge Alito’s inability to recognize this type of discrimination threatens dire consequences for rights hard won by women over the last few decades. The majority of our nation’s families depend on income from both parents just to get by. The future and strength of our nation depends on the strength of the fabric that our families are made of. I can not in good conscience vote to allow any of the gains that have allowed women to become an integral part of our nation’s workforce while remaining exceptional mothers to their children to be rolled back.”

The floor debate is still going on and we would like to see all of their female Senate colleagues, on both sides of the aisle, join the opposition led by these women.

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On eve of Roe anniversary, leading women’s groups say Senators can’t support Roe and vote yes on Alito

This Sunday marks the 33rd anniversary of the Supreme Court decision Roe. v. Wade.  Noting the importance of Roe in protecting women’s liberty, dignity and right to privacy, eight leading women's health and rights organizations, including the National Women’s Law Center, sent a letter yesterday to a list of Senators in both parties urging them to reject the Alito nomination.  The letter notes that in the last seven years, the Senate has twice put itself on record as supporting the protections of Roe, and argues that now is the time for Senators who joined the majority on those votes to re-affirm their commitment to Roe by voting against the Alito nomination.  "We believe it is inconsistent to claim to be pro-choice and then vote for Alito’s confirmation,” the letter says.

Signing the letter are:  Planned Parenthood Federation of America, Inc., NARAL Pro-Choice America, National Partnership for Women & Families, National Women’s Law Center, National Abortion Federation, Black Women’s Health Imperative, Feminist Majority and National Family Planning and Reproductive Health Association. 

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Supreme Court issues a decision in the Ayotte case

Today the Supreme Court issued its decision in Ayotte v. Planned Parenthood of Northern New England, the case involving a challenge to a New Hampshire abortion law that included no exception to protect a woman’s health.  In a 9-0 decision, written by Justice O’Connor, the Court ruled that under the Court’s past precedents, the New Hampshire law is unconstitutional because it fails to ensure the protection of women’s health, but it sent the case back to the lower courts to reconsider the breadth of the injunction that had been issued striking down the law in its entirety. 

This is what NWLC Co-President Marcia Greenberger had to say about the Court’s ruling:

“In a fitting tribute to the legacy of Sandra Day O’Connor, a unanimous Supreme Court agreed not to revisit its abortion precedents – ‘today.’ A woman’s right to choose is safe for the moment. But what remains of great concern is what would happen if and when the Supreme Court decides to revisit Roe v. Wade in the future.

“The Supreme Court restated the longstanding requirement under Roe v. Wade that a barrier to abortion that endangers a woman’s health is unconstitutional. This protection is crucial for women’s health and safety.

“We fear what will happen if -- as envisioned by Judge Alito -- a reconstituted Supreme Court, without Sandra Day O’Connor, does decide to revisit its past precedents protecting women’s right to choose.”

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The anti-choice crowd liked Alito’s testimony for the same reasons we didn’t

The extreme right applauded what they heard from Samuel Alito last week during his testimony before the Senate Judiciary Committee.  As we noted with concern last week, Judge Alito refused to say that he believes the Constitution protects the right to choose or that Roe v. Wade is settled law. For that very reason, anti-choice groups have concluded that they will get just what they are looking for if Alito is confirmed.   Here is what some anti-choice advocates and commentators had to say:

The Christian Coalition of America, a group founded by Pat Robertson, was thrilled that Alito did not respond to the attempts by some Senators to “force [him] into retracting his positions on abortion,” declaring they were left with “no doubt he considers that Roe v. Wade was a wrongly decided issue.” They noted that President Bush had promised he would appoint Supreme Court justices in the mold of Justices Antonin Scalia and Clarence Thomas, and concluded that President Bush “has delivered his promised in the person of . . . Judge Samuel A. Alito.”  (Scalia and Thomas, don’t forget, have both opined in dissents that Roe was wrongly decided and should be overruled.)

The National Right to Life Committee was pleased that Judge Alito resisted saying that Roe was settled law, and in an article on their website enthusiastically proclaimed, “Settled law? Anything but!”

An article in Human Events Online, a conservative publication, observed – just as we did last week -- that Alito “clearly [left] the door open to overturning Roe, noting that stare decisis was not ‘an inexorable command.’”

So there you have it: the anti-choice folks agree with us on what is likely to happen if Alito is confirmed. It’s their fervent dream – and our worst nightmare.

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Alito's explanation for his family leave decision falls flat

Judge Alito’s testimony is adding to the reasons that his decision in a Family and Medical Leave Act case concerns us.  In  Chittister v. Department of Community and Economic Development, Judge Alito ruled that state employees could not sue for damages if their employers violated the FMLA’s provision allowing individuals to take medical leave to deal with their serious illnesses.  His ruling was based on his conclusion that this aspect of the FMLA was beyond the power of Congress under the Fourteenth Amendment to the Constitution, because it was not aimed at addressing sex discrimination.   At his hearing, Judge Alito explained that he didn’t think there were any Congressional findings showing a connection between medical leave and sex discrimination in employment.  But in enacting the FMLA, Congress recognized the connection between sex discrimination and medical leave.  As Senator Biden put it this morning, “[W]hen [Congress] wrote the law, we said explicitly that . . . we wanted the bill to protect working women from the dangers that pregnancy-based distinctions could be extended to limit their employment opportunities.”  In fact, Congress specifically noted that the FMLA was necessary to minimize the potential for sex discrimination by ensuring that leave would be available for medical reasons (including for maternity-related reasons) for both men and women. This was important because women had been denied medical leave and suffered other adverse employment actions for taking medical leave for reasons related to pregnancy.  Judge Alito clearly didn't get this, and that doesn't bode well for what he would do on the Supreme Court on family leave issues.

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"I’ll be the same person that I was on the Court of Appeals." Say what?

This morning, in response to a question from Senator Coburn asking whether Alito would be like Sandra Day O'Connor on the Supreme Court, Judge Alito said, “[I]f I'm confirmed, I'll be myself. I'll be the same person that I was on the Court of Appeals.” Alito’s statement is not at all comforting given what we know about his record  on the Court of Appeals . Let’s review some highlights from his troubling record on the Third Circuit:

• He supported the strip search of a 10-year-old girl and her mother.

•  He ruled that Congress lacked the power to enact provisions of the Family and Medical Leave Act giving state employees meaningful remedies when their employers illegally deny them medical leave as guaranteed by that law.

•  He wrote a dissent arguing to uphold a dangerous barrier to abortion in Planned Parenthood v. Casey.

•  He wrote a dissent in favor of throwing out a complaint alleging egregious sexual harassment –  he would have dismissed the appeal based on nothing more than a pleading error by the plaintiff’s lawyer.

•  He took such a narrow view of Congress’ power to protect our safety that he would have struck down a law regulating machine guns, contrary to the position of every other circuit court that has reviewed the constitutionality of the same law.

We're hardly encouraged by Judge Alito's promise that we're in for more of the same if he joins the Supreme Court.

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